A. The positioning of legal personhood in immigration and asylum

This Article analyses the notion of legal personhood in the context of the person/non-person divide, a conceptual scheme which is deeply embedded in Western legal thought and is employed to understand and categorise the norms of Western legal systems. Paradigmatic concepts such as legal personhood, legal subjectivity and subjective right are basic legal categories which underpin ‘the conceptual space for modern law’.Footnote ⁷

Legal personhood is a concept that elicits much discussion because of the diverse interpretations of the legal status(es) attached to personhood, that is, the nature of rights/entitlements and responsibilities/obligations, and in primis the required attributes for human beings to acquire legal personhood and be a subject of law.

What essential characteristics define and qualify personhood? Who is a person? Are, and should, all human beings be persons? Should we assume that personhood and humanity ought to (automatically) overlap? What is its relationship with equality of status and access to justice? What does it mean to be a legal person and to be recognised and treated as such in everyday life?Footnote ⁸ Does it signify access to all the tools and benefits provided by law? In answering these questions, the Article deliberately intends to problematise the paradigmatic concept of legal personhood in Western legal thought.

In legal scholarship and parlance there are numerous assumptions pertaining to the notion of legal personhood that are widely accepted and seldom challenged. Insofar as we can clearly distinguish persons from non-persons the individual components that make up personhood remain consistent with each other, that is, there is no conflict between them. However, legal disputes show that the law is rife with cases where the components of the notion of personhood pull in opposite directions.Footnote ⁹ It follows that the concept of personhood, in spite of having taken centre stage, is not as solid and reliable as it might appear at first sight.Footnote ¹⁰

Using the lens of immigration and asylum in Europe, the Article revisits and reappraises orthodox understandings of legal personhood and seeks to depart from a dichotomic approach to the notions of legal subject and legal object. The intended aim is not a rejection of the main tenets of legal personhood but rather to demand a new understanding of it and its core elements.

It draws on critical constructivismFootnote ¹¹ to unravel and challenge elitist assumptions that underlie existing knowledge and certain forms of knowledge production that have become pervasive in order to deconstruct and to revisit settled understandings and assumptions about legal personhood, thereby fostering the inclusion in mainstream discourse and practice of previously excluded and marginalised individuals and/or groups in society. It also builds on Thym’s approach of ‘contextually embedded doctrinal constructivism’Footnote ¹² to reconfigure the notion of legal personhood on the assumption that ‘law can also structure an extra-legal normative universe’,Footnote ¹³ by creating ‘new vocabularies for claim making’, ‘encouraging new forms of subjectivity to engage with the public sphere, and interjecting existing relations of power with anticipations of justice to come’,Footnote ¹⁴ through a process of ‘jurisgenerativity’.Footnote ¹⁵ The proposed reformulated approach to legal personhood builds on a reconsideration of the triptych of equality, human rights and human dignity and their connection to legal personhood. The result is the formulation of equal human dignity, which is at the epicenter of the proposed new vision of legal personhood.

The Article probes the ontology of contemporary legal constructions of personhood and their necessity for immigrants and asylum claimants’ human rights entitlement and effective protection. In this context, it looks at the role of law and, in particular, at how legal constructions of personhood can create ‘preconditions of exploitation of vulnerable groups and individuals’Footnote ¹⁶ in society. It is posited that law plays a decisive role in shaping and defining the identity and place of individuals and categories of people within societies and communities. Legal norms may either provide for or facilitate racial, economic and other forms of subordination or permit exploitation, more or less in an overt manner. While contemporary laws, including international human rights instruments may prohibit de jure multi-faceted forms of abuses, current legal doctrines and practices may facilitate de facto exploitation.Footnote ¹⁷ Hence, as constructed legal personhood ‘is also a power dispositiveFootnote ¹⁸ whose unquestioned adoption prevents human rights from being the kind of rights possessed by “all human beings simply in virtue of their humanity”’.Footnote ¹⁹

Put differently, there can be instances where there is no reference to personhood in law and yet legal attributes of personhood are granted or withheld by law.Footnote ²⁰ This occurs when the law breaks all or some links between personhood and ‘humanity’: when the legal notion of person coincides with the biological meaning of ‘human being’ as a pre-condition for a full set of entitlements, legal norms will provide for full personhood both within the order of nature and within the social/political order; conversely, when the legal notion of person is made to coincide with the narrower notion of ‘citizen-national’ as a pre-condition for a full set of entitlements, then legal norms will provide for full personhood only within the legally constructed social/political order. What follows is an asymmetry between the order of nature where all human beings are equal (and treated as equals) and the social/political order where human beings are not all equal (and are not all treated equally). This argument is visually illustrated in Figure 1.Footnote ²¹ At the centre of the graph we have the individual; on the left side we have the ‘socio-political status’ of the individual, namely, personhood and the ‘legal-political status’, namely ‘nationhood’ on the right.Footnote ²² At the top end of the graph, we have the ‘biological status’, namely, the individual as a ‘human being’. At the opposite end of the spectrum, we have ‘citizenship’, corresponding to a full legal status. The double axes on the four sides of the spectrum indicate the interactive and interdependent relationship between each status and how this dynamic relationship directly impacts on the status and treatment of an individual. If the law was to conceive and premise the notion of person (= Legal Status) as a ‘Human Being’ (= Biological Status) for both ‘Citizens’ and ‘Aliens’ then there would not be any asymmetry between the order of nature where all human beings are equal (and treated as equals) and the social/political order where human beings are not all equal (and are not all treated equally). Conceived in this way, the concept of personhood has a broader remit in comparison with the narrower notions of ‘Citizenship’ and ‘Nationhood’ and it would not require membership to a given community (= Political Status) to be entitled to equal and fair treatment before the law.

Figure 1.

The Human Being Chart.

Hence, the power of states to decide whether, to what extent, and under what conditions individuals who are not members of a given political community or society – the ‘outsiders’ – may, firstly, enter its territory and, secondly, share certain material rights brings with it the view that an individual is more deserving by virtue of his or her status as citizen or national – the ‘insider’ – than an individual who is not,Footnote ²³ illustrating how the law is instrumental to stratifications of personhood. The orthodox conception of legal personhood is also intertwined with Westphalian conceptions of state sovereignty and territoriality thus encompassing also jurisdictional questions.Footnote ²⁴ ‘The (international) legal identity of the individual or collective Self is conceived as part of a broader concept of personal or collective identity’.Footnote ²⁵ To put it differently, international legal personhood is premised and constructed on the same orthodox conceptualisation of legal personhood in relation to the individual. Nijman explains this very clearly in saying that the ‘individual and the collective (eg the state) Self are (philosophically) intertwined. This is self-evident as the individualist, subjectivist perspective has marked the deep structure of international law’.Footnote ²⁶

Law and, specifically, legal constructions of personhood acting as legal fictions can create ‘legal disabilities’ to which some human beings can be subjected, by way of exclusion from a set of legal protectionsFootnote ²⁷ and material rights. In turn, this can lead to the creation of an inferior form of legal personality, namely, a quasi- or semi-personhood that invites different forms and degrees of victimisation and vulnerability.Footnote ²⁸ Figure 2 illustrates how this stratification of personhood operates: the lower the level of legal recognition as a person the lower the level of human rights protection and the moral worthiness of an individual and their dignity de jure and/or de facto. In this context the notion of private property:

Figure 2.

The Vulnerability Chart.

The Article relies on Bravo’sFootnote ³⁰ contextualised understanding of personhood and the status of person in society defined as:

This definition will be used as the Article’s lens of analysis. It builds on Rancière’sFootnote ³¹ critique of Arendt’s vision of human rights according to which the subject of human rights emerges through a process of political action and speech in order to verify the existence of and exercise those rights ‘that are inscribed within the self-understanding of the political community’.Footnote ³² According to Rancière it is precisely through this process that political subjects demonstrate the reality of both their ‘equality’ as humans within the order of nature and their ‘inequality’ within the social order. On this account, immigrants and asylum claimants can demonstrate, on the one hand, that they do not enjoy the full set of rights that they are supposed to have according to various international human rights treaties: by making public their exclusion immigrants and asylum claimants draw attention to their plight and the ways in which they are denied the same universal human rights from which states claim to derive their legitimacy. On the other hand, by raising awareness of their situation they act as political subjects and demonstrate, therefore, that they have legal entitlements despite the fact that they cannot (fully) enjoy them. In so doing, they demonstrate their ‘equality’ as humans, despite being excluded from politics and being deprived of legal personhood.

While legal personhood, as traditionally construed, intends to grant all humans an inherent and equal recognition before the law, positive law limits or can also negate these rights as it ties rights to the nation-state through an idea of citizenship based on membership to a domestic political community.Footnote ³³ With countries withholding or limiting the attributes of full personhood, immigrants and asylum claimants are made vulnerable through exclusion from the more privileged status of ‘citizen-national’.Footnote ³⁴ Moreover, such a narrow notion of legal personhood does not capture the various porous phases of legality and illegality/irregularity that they can be forced to go through.

B. Legal personhood: past and present

In a traditional sense legal personhood is not controversial. Reference to persons or legal persons as legal subjects can be found in abundance in the law, particularly (but not limited to) that of civil law traditions.Footnote ³⁵ The notion of legal subject refers to an entity – either a natural or a juristic person – recognised or accepted as being capable of holding rights, duties and capacities, and legal object as something or someone in respect of which a legal subject may hold rights, duties and capacities.Footnote ³⁶

Historically, not all human beings qualified as legal persons.Footnote ³⁷ Under Roman law slaves were not considered to pertain to the category of persona; rather they were characterised as res, that is, as an object.Footnote ³⁸ Thym maintains that Roman jurists employed the term largely to describe a human being and that the primary contribution of Roman law is to have focused on the status or rather stati of a person, such as for example status libertatis, status civitatis and status familiae.Footnote ³⁹ This status-oriented approach was subsequently utilised by civil law jurisdictions to describe categories of legal relations between members of society without much legal substance or conceptual depth up to the 18^th century. The more substantive concept of personhood, which is closer to today’s notion of personhood was developed by natural lawyers and moral philosophers defining person as a self-reliant moral actor and a legal subject who is entitled to and exercises rights, this being inherent in all human beings.Footnote ⁴⁰ This understanding of personhood is intertwined with human dignity which is at the basis of contemporary ideas of human rights as unalienable entitlements.Footnote ⁴¹

German 19^th-century theories of law, rights and legal personhood – inspired largely by Roman civil law – have had a significant impact on certain core aspects and categories of legal personhood, which are still used in present times in many civil law countries. One of their most important contributions is the fundamental classification of natural persons (natürliche Personen; personnes physiques) – denoting human individuals who are legal persons – and artificial or juristic persons (juristische Personen; personnes morales), meaning any other type of legal persons, such as associations, limited liability companies, and foundations, all of which can own property and enter into contracts using their own legal names.Footnote ⁴² Additionally, civil law scholars often contrast the legal person (persona) with the legal thing (res). Legal thinghood can have three meanings. First, ‘thing’ can refer to anything, or at least any physical object, that is susceptible to being owned. This understanding is reflected in phrases such as ‘rights in rem’ (‘rights to things’, namely, property rights) as opposed to ‘rights in personam’ (‘rights in relation to persons’, such as contractual rights). Second, res according to ancient Roman law denoted largely what we refer to as rights and duties. This meaning is still used today, such as for example, the common-law phrase ‘thing in action’ (or ‘chose in action’), basically referring to the right to sue. Third, and in its broader meaning, ‘thing’ can denote anything that is not a person.Footnote ⁴³

From this perspective, everyday life comprises a network of clearly identifiable legal relationships among legal subjects concerning their rights or duties and covering claims that a legal subject has or may have on a legal object.Footnote ⁴⁴ As Nijman eloquently puts it: ‘legal personality is a mode of identity (ie the ethical–moral identity of the Self) at a particular scale: in relations with a third person or Other mediated by cosmopolitan institutions’.Footnote ⁴⁵ In this context, it is possible to discern two types of relationship: a ‘subject–subject relationship’ between the bearer of the right and other legal subjects, and a ‘subject–object relationship’ between the right-bearer and the legal object of his or her right.Footnote ⁴⁶ To put it differently, the status of ‘person in law’ is granted to beings designated by the law as ‘right-holders’ even though in certain circumstances those same persons become ‘objects of rights’ and ‘objects of obligations’ (or ‘duty-bearers’) held by other persons in law.Footnote ⁴⁷ Here, Kurki suggests introducing a distinction between ‘legal subject’ or ‘legal person’, which is a cluster concept (discussed below), and ‘subject of law/right(s)’ (rechtssubjekt; sujet de droit), which is a term referring to one’s status within a field of law or with regard to a legal institution.Footnote ⁴⁸ Being merely a ‘rights-holder’ or an ‘object of rights’ or ‘duties’ ascribed to others should not qualify an entity as such, but it does. In spite of its putative neutralityFootnote ⁴⁹ the legal construct of the person thus performs a political function.Footnote ⁵⁰ Within the traditional realm of legal personhood, including legal philosophy and ethics, the notion of person has been deployed to denote beings or entities considered worthy of moral and/or legal concern, to the exclusion of others.Footnote ⁵¹ This can lead to inequity and injustice, which can occur also through homogeneity without there necessarily being willful intent.

Structurally, legal personhood is co-constitutive with the attribution of legal rights.Footnote ⁵² In this sense Douzinas maintains that: ‘the subject is a creation of the law, an artificial entity which serves as the logical support of legal relations. Right and subject come into life together’,Footnote ⁵³ though the actual content of the relationship will change, also in the light of various theories of rights and legal personhood.Footnote ⁵⁴

C. Unpacking legal personhood

While there is no agreement about how precisely to elaborate a definition of legal personhood and there is thus no universally accepted notion, the key element of traditional approaches to legal personhood seems to be the ability to bear rights and duties.Footnote ⁵⁵ Relatedly, and drawing on the capacities of legal persons taxonomy, we can identify passive and active elements of legal personhood, each referring broadly to the categories of legal capacity and legal competence.Footnote ⁵⁶ The term person is thus used to configure the legal personality of actors within society, ie their rights and obligations within the framework of a given state’s or polity’s policies and ideals.Footnote ⁵⁷ From this perspective, OhlinFootnote ⁵⁸ talks about personhood as a ‘cluster concept’, which is well-explicated by NaffineFootnote ⁵⁹ who maintains that:

Similarly, Kurki considers legal personhood as a ‘cluster property’ consisting of ‘incidents’, which are separate but interconnected; these incidents can have an active and passive dimension involving the endowment of a given person with particular types of claim-rights, responsibilities, and/or competences.Footnote ⁶⁰ Here we can draw further on Hohfeld’s eight-term schema for the analysis of legal relations, on the basis of which all legal relations are a combination of eight ‘atomic’ (or ‘basic’) legal positions, which can be metaphorically described as ‘molecules’.Footnote ⁶¹ When we link this schema to rights we find that most rights have a complex internal structure because they are ‘ordered arrangements’ of basic components, just as molecules are ‘ordered arrangements’ of chemical elements.Footnote ⁶² In this context, we can distinguish ‘first-order’ from ‘higher-order’ Hohfeldian positions.Footnote ⁶³ Broadly, ‘first-order positions’ establish whether a given conduct is required, permitted or forbidden, whereas ‘higher-order positions’ define how legal relations can be changed and are only indirectly associated with whether a conduct is permissible or compulsory.Footnote ⁶⁴ ‘First-order positions’ are: duty, privilege (also known as liberty), claim-right (also labelled simply as claim or right), and no-right (sometimes known as no-claim). A person who has the duty to a certain conduct that is required under the terms of some legal norm(s) entails that another person has a claim (or a claim-right) to this conduct. This correlative axiom entails that with every conduct or action there will always be a duty towards another party.Footnote ⁶⁵ The other key correlatives are liberty (also known as privilege) and no-right (occasionally labelled no-claim). If the content of an act provides that it is to be done by the ‘right-holder’, then the right in question is actually a privilege; if the content establishes that the act is to be done by the holder of the correlative, then the right is a claim-right.Footnote ⁶⁶ For instance, to say that anyone has a right to pick up a seashell that they find on the beach is to say that they have no duty not to pick it up.Footnote ⁶⁷ They will not be violating any duty not to pick up the shell should they decide to do so.Footnote ⁶⁸ As Kurki aptly maintains: ‘the concept of no-right is one example of how our everyday language of rights and duties can be misleading’Footnote ⁶⁹ in that the term ‘right’ is commonly and interchangeably used to describe situations that in reality refer to what Hohfeld would define as privileges or liberties.

Hohfeld’s eight-term schema indirectly demonstrates the artificial nature of legal constructions of person. The orthodox view of legal personhood equating ‘X’s legal personhood with the holding of legal rights and bearing of legal duties by X’, which may have worked in the context of 19^th-century notions of rights and duties, is no longer viable in present times.Footnote ⁷⁰

While alluring for its simplicity, the orthodox view of legal personhood presents problems of circularity and illustrates the woolly nature of a rights language.Footnote ⁷¹ In other words, it fails to fully capture both morally and legally the irrefutable fact of ‘simply being a human’, that is, the biological dimension of personhood with its intrinsic equal moral worth, rather than personhood in and of itself as a purely normative determination and static legal fiction.Footnote ⁷² Vatter and de Leeuw talk about the reality of legal fiction as ‘a self-referential insulation of the legal person from embodiment and biological life’ thus becoming ‘problematic from the perspective of human rights’.Footnote ⁷³ Making the access to and exercise of rights dependent solely on membership of a national community, that is nationhood and citizenship, is also problematic. The way the correlation between a person and human rights is legally constructed leads to a hierarchy or stratification of legal personhood.

Jean Thomas’s critique of legal formalism further shows the limitations of an orthodox conceptualisation of legal personhood.Footnote ⁷⁴ The premise is the recognition that rights exist in a value pluralism or contestation context and the resulting acknowledgement that normative disagreement over rights is about whether they are morally fundamental or instrumental. A value-neutral and descriptive theory of rights that assigns rights solely with an instrumental role that is meant to serve a multiplicity of valuesFootnote ⁷⁵ will be refuted by those who argue that rights are morally fundamental, specifically that they constitute incommensurable ethical commitments. The main underlying reason of disagreements about rights is that they encapsulate essentially substantive normative questions: it is difficult to make sense of these disagreements, and therefore resolving them by way of a mere logical entailment, without taking into account the moral considerations underlying them.Footnote ⁷⁶

The above forces us to rethink and revisit the concept of legal personhood by grounding it in the legal concept of equal human dignity. This approach is necessary to counteract the more or less explicit tendency towards the establishment of a hierarchy of humanity which leads to the treatment of some as less than human or the creation of the Untermenschen, ie a category of ‘sub-humans’ not worthy of the same human rights or the same level of protection under the law.

A. The notion and meaning of human rights

Strictly linked to the notion of legal personhood is that of human rights, generally conceived as basic guarantees that people in all countries are endowed with, can enjoy and exercise, and invoke against others.Footnote ⁷⁷ Human rights, in their literal sense, ‘are ordinarily understood to be the rights that one has simply because one is human. As such they are equal rights, because we either are or are not human beings, equally’.Footnote ⁷⁸ Relatedly, human rights are perceived as inalienable in nature ‘because being or not being human usually is seen as an inalterable fact of nature, not something that is either earned or can be lost’.Footnote ⁷⁹ In this sense, ‘human rights are considered “universal” because they are held “universally” by all human beings’ – what Donnelly coins as ‘conceptual universality’,Footnote ⁸⁰ although their universality is contested by many. Sen’s proposition is perhaps more convincing. He maintains that: ‘proclamations of human rights are to be seen as articulations of ethical demands’Footnote ⁸¹ rather than ‘principally “legal”, “proto-legal” or “ideal-legal” commands. Even though human rights can, and often do, inspire legislation’,Footnote ⁸² this is because human rights are ‘claims about how a society ought to treat individuals rather than how their actual laws are configured.’Footnote ⁸³

Because of their very nature, human rights act as standards of justification and parameters for criticism of public and private action. On this point, Rawls refers to human rights as denoting ‘limits to a regime’s internal autonomy’, which ‘express a special class of urgent rights’, the violation of which is equally not tolerated by either ‘reasonable liberal peoples and decent hierarchical peoples’.Footnote ⁸⁴ It is for this reason that, according to Rawls, human rights generally receive international consensus. However, the question as to whether there are any such universal rights, where they are located (with the exception of internationally recognised human rights), what type of remedies have been put in place for their violation, and who can enforce them – what can loosely be termed ‘functional universality’–Footnote ⁸⁵ is subject to debate, and remains a divisive point.Footnote ⁸⁶ Moreover, many scholars have expressed deep disenchantment with human rights’ ideology, discourse, practice and law, questioning their potency and legitimacy ‘as flawed, inadequate, hegemonic, confining, overreaching, apolitical, peripheral, or pointless’.Footnote ⁸⁷ De Búrca neatly summarises the main tenets of this critical scholarship by saying that human rights ‘have been accused of being tools of Western imperialism, an elitist and bureaucratic legal paradigm, a limiting expert discourse which crowds out emancipatory political alternatives, which limits its ambitions and hides its own “governmentality”, an intellectually ‘autistic’ culture, an anti-politics, and a companion to neoliberalism’.Footnote ⁸⁸

While acknowledging that the human rights project is not devoid of limitations and weaknesses, it is continuously evolving and still retains appeal and significance as it relates to core values such as human dignity, human welfare, and human freedom that – in their different meanings and readings – have acquired universal acceptance.Footnote ⁸⁹ On this point, Goodale argues that a radically reformulated or reimagined approach to human rights can provide a fundamentally reconfigured framework for global justice, which abandons universality in favour of ‘translocality’.Footnote ⁹⁰ The Article embraces this third way approach to human rights.

B. The relationship between legal personhood and human rights under international human rights law

In spite of the exegetical difficulties examined so far, the concept of legal personhood continues to be considered as a useful and necessary foundation for human rights entitlement.Footnote ⁹¹ As Ohlin puts it: ‘personhood is a talisman that confers status, respect, and moral worth, and for this reason the concept is deeply ingrained in legal discourse in general and in human rights in particular’.Footnote ⁹² In this context, law (intermeshed with cultural, moral and ethical values and principles of a given society) plays a decisive role in constructing the key elements for the recognition of personhood as a premise for the exercise and enforcement of human rights, as well as their restriction or limitation, by groups or individuals in society.Footnote ⁹³ It is posited that the notion of human rights should have a distinctively narrow meaning ‘to denote rights that constitute the human’.Footnote ⁹⁴ Put differently, ‘human rights are the rights that make us human’.Footnote ⁹⁵

In legal reasoning,Footnote ⁹⁶ scholarly literature on rightsFootnote ⁹⁷ and international human rights instruments, such as the United Nations (UN) Universal Declaration of Human Rights (UDHR),Footnote ⁹⁸ rights are granted to (legal) persons as valid bearers of moral claims. Hence, ‘the notion of human interrelates with the notion of justice to produce a conception of rights that is constitutive of humanity’.Footnote ⁹⁹ In this narrower context, ‘justice governs the becoming of beings’.Footnote ¹⁰⁰ The UDHR’s inclusion of the right to legal personhood for everyone in Article 6 indicates law’s key role in ascribing and enforcing the Declaration’s rights.Footnote ¹⁰¹ Through a combined reading of the Declaration’s Preamble, and Articles 1 and 6 as well as its other articles, it appears that the term person refers to human beings.Footnote ¹⁰² According to Thym,Footnote ¹⁰³ Article 6 UDHR guided the drafting of Article 16 ICCPR which provides that: ‘Everyone shall have the right to recognition everywhere as a person before the law’. This Article is considered as a general guarantee of legal personhood understood as a bearing of rights and obligations rather than in the narrower meaning of legal capacity to enter into legal obligations autonomously.Footnote ¹⁰⁴ It exemplifies the ‘equal moral worth of all persons’Footnote ¹⁰⁵ that underlies all international human rights instruments.Footnote ¹⁰⁶

The main limitation of Article 16 ICCPR is that it provides a ‘thin’ formal guarantee rather than encompassing a ‘thick’ notion of legal personhood covering also substantive rights and equality. We thus need to look elsewhere. The key general guarantees to equality are found in Article 2(1) ICCPR which states that: ‘the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’, and Article 26 ICCPR, which provides that: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law’. This provision affords a far-reaching, free-standing, and autonomous level of protection, prohibiting ‘discrimination in law or in fact in any field regulated and protected by public authorities’.Footnote ¹⁰⁷

As to social and economic rights, Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that everyone has the right to ‘an adequate standard of living for himself and his family including adequate food, clothing and housing, and to the continuous improvement of living conditions’. Article 12(1) ICESCR provides that: ‘the States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ Further guidance can be found in Article 25 UDHR which states that:

Moreover, Article 3 ICESCR provides a positive duty on States Parties to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the Covenant. Other provisions, such as Articles 6(1), 7, 9, 13 and 15 ICESCR, provide for the right to work, including the enjoyment of just and favourable conditions of work to ensure among others ‘a decent living for themselves and their families’, the right of everyone to social security, including social insurance, the right to education and the right to cultural life. In addition, Article 31 of the European Social Charter provides for the right to housing which includes access to housing of an adequate standard; the prevention, reduction and gradual elimination of homelessness and accessible price of housing to those without adequate resources. Reference to adequate standard of living in these provisions encompasses the guarantee of key basic rights concerning an individual’s mental and physical health, subsistence and general well-being. Read together, these provisions aim at ensuring a ‘thick’ notion of legal personhood extending to substantive rights and equality.

C. The relationship between legal personhood and human rights under European/EU human rights law

As to the European/EU context, although there is no equivalent of the right to equal personhood in either the European Convention on Human Rights (ECHR) or the EU Charter of Fundamental Rights (EUCFR), the universal application of the rights protected under each human rights instrument rests upon the underlying idea of the moral equality of all human beings, and can be identified by the reference to terms such as persons, people, the individual, human community and everyone in the EU Charter,Footnote ¹⁰⁸ and in the ECHR by the reference to person, everyone and no one throughout, as well as a combined reading of its Preamble referring to equality of all persons with its Articles,Footnote ¹⁰⁹ which overall seems to suggest that there is an implicit recognition of equality of legal personality.

As to a ‘thick’ notion of legal personhood covering also equality and substantive rights, the key general guarantee to equality in the European Convention is Article 14 ECHR entitled ‘Prohibition of discrimination’, which provides that: ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. This provision presents a number of limitations. In part this is because non-discrimination under the Convention does not have the ‘same, specific, foundational designation’Footnote ¹¹⁰ as it does in the UN Charter.Footnote ¹¹¹ There is also no provision in the ECHR that corresponds to the text of Article 26 ICCPR which, as explained above, aims at providing a high degree of protection against any form of discrimination in all areas regulated by the state.Footnote ¹¹² In addition, Article 14 ECHR is a parasitic provision as it only applies to the European Convention’s rights, freedoms and Protocols.Footnote ¹¹³ Protocol 12 to the ConventionFootnote ¹¹⁴ aims at addressing this limitation. As maintained by Harris and others, ‘the advance offered by the Protocol is that the narrow field to which Article 14 currently restricts non-discrimination standards is extended to “any right set forth by law”’,Footnote ¹¹⁵ even though it still remains a weaker text than that of Article 26 ICCPR.Footnote ¹¹⁶

Nevertheless, the ECtHR’s dynamic interpretation of the European Convention’s provisions, together with the application of the principle of effectiveness, has ensured the protection of certain substantive rights. For example, in Stec and Others v UK the Court held that Article 1 of the First Protocol to the ConventionFootnote ¹¹⁷ applied to individuals who have ‘an assertable right under domestic law to a welfare benefit’.Footnote ¹¹⁸ Specifically, it held that non-contributory social security benefits were within the ambit of that Article in the same way as contributory benefits. This admissibility decision has enabled Article 14 ECHR to have the potential to apply to a large number of national social security provisions.Footnote ¹¹⁹ Moreover, ‘[w]hile the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature’.Footnote ¹²⁰

When considering Article 3 ECHR cases, the ECtHR has consistently held that the lack of resources of a state cannot normally justify the failure to fulfil their obligations under the Convention. In particular, in a series of cases concerning the provision of social welfare services by the state, the Court found that its insufficient provision particularly in cases of complete dependency on state support may be incompatible with human dignity.Footnote ¹²¹ The Court has found that poor reception conditions for asylum claimants provided by host states can amount to a breach of Article 3 ECHR. In M.S.S.,Footnote ¹²² a case concerning a Dublin transfer,Footnote ¹²³ the ECtHR held that the fact that an asylum claimant had spent months living in a state of extreme poverty, unable to cater for his most basic needs in combination with prolonged uncertainty and the total lack of any prospects of his situation improving amounted to a violation of Article 3 ECHR.Footnote ¹²⁴ Significantly, in M.S.S., the Court used EU asylum standards to find a lack of protection that went beyond the traditional Conventional rights.Footnote ¹²⁵ In particular, the ECtHR found that there is a positive obligation on Member States stemming from the EU Reception Conditions Directive (RCD)Footnote ¹²⁶ to provide asylum claimants with accommodation and decent material conditions and it used the ‘particularly serious’ deprivation of material reception conditions to extend the notion of inhuman and degrading treatment to the extremely poor living conditions of destitute asylum claimants.Footnote ¹²⁷ It can be seen that the right to human dignity requires that the quality of life of an applicant for international protection must be one that is of a sufficient standard and specifically one that respects the intrinsic worth of mankind.Footnote ¹²⁸ In Limbuela Footnote ¹²⁹ the United Kingdom (UK) House of Lords followed a similar approach and held that failure by the state to provide social support, thus exposing an individual to a real risk of becoming destitute, will in certain circumstances constitute inhuman and degrading treatment and will be contrary, therefore, to Article 3 ECHR. Significantly, Lady Hale said that Article 3 ECHR ‘reflects the fundamental values of a decent society, which respects the dignity of each individual human being, no matter how unpopular or unworthy she may be’.Footnote ¹³⁰ Hence, in cases where states are dealing with a particularly vulnerable group such as asylum claimants minimum reception conditions need to be ensured to meet the standard under Article 3 ECHR.Footnote ¹³¹

The analysis shows that the ECtHR’s hermeneutic approach enables the definition and can facilitate the application of a ‘thick’ notion of legal personhood in the legal framework of the European Convention, tied in with human dignity.

With regard to the EU Charter, the question about a possible violation of human dignity arose in relation to another Dublin transfer case. In Jawo Footnote ¹³² the CJEU recognised that a situation of extreme material poverty that does not allow a recipient of international protection to meet his most basic needs puts that person ‘in a state of degradation incompatible with human dignity’.Footnote ¹³³ Prior to adopting a transfer decision, the competent national authorities of the requesting Member State must therefore carry out an assessment to rule out the existence of systemic or generalised deficiencies in the receiving Member State affecting the living conditions of those receiving international protection, that attain a particularly high level of severity so as to place the person concerned in an involuntary situation of extreme material poverty.Footnote ¹³⁴ In practice, in Jawo the CJEU introduced an additional ground for non-transfer and imposed a new exception to the principle of mutual trust in CEAS, thus going beyond the N.S. case law.Footnote ¹³⁵ At the same time, the Court also established a high threshold by holding that it does not extend to ‘situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned, where they do not entail extreme material poverty’.Footnote ¹³⁶ This hermeneutic approach of the CJEU in relation to the obligation contained in Article 4 EUCFR seems to be in contrast with the position of ECtHR vis-à-vis the absolute nature of the prohibition established in Article 3 ECHR.

As to equal legal personality, Article 20 EUCFR laconically provides that: ‘Everyone is equal before the law’. In order to understand the meaning of this provision we need to look at the Explanations on the Charter, which state that: ‘this Article corresponds to a general principle of law which is included in all European constitutions and has also been recognised by the Court of Justice as a basic principle of Community law’.Footnote ¹³⁷ This seems to suggest that the purpose of this Article is to reassert equal treatment, a long-standing general principle of EU law.Footnote ¹³⁸ Hence, although this provision is rather concise, ‘it enounces a universalistic claim […] and its field of application is amongst the broadest’ (circumscribed only by Article 51 EUCFR), which also explains why ‘it is not connected to certain pieces of EU legislation’.Footnote ¹³⁹

However, a closer look suggests that equality before the law as embodied in Article 20 EUCFR is associated with formal equality and the equal application and enforcement of the law centred around procedural justice.Footnote ¹⁴⁰ Because of its broad application, the provision has been defined as enunciating an ‘abstract concept’Footnote ¹⁴¹ and as reflecting an ‘empty idea of equality’, which ‘threatens to swallow “rights” that once ranked far above it’.Footnote ¹⁴² In general, the fluid nature of formal equality and its failure to ensure objectivity may perpetuate inequalityFootnote ¹⁴³ for failing to tackle the root causes of inequalityFootnote ¹⁴⁴ with the related risk of legitimising social and legal practices that can reproduce disadvantage.Footnote ¹⁴⁵

Article 21 EUCFR on non-discrimination somewhat addresses the limitations of its sister provision. The aim is to ensure substantive equality and its focus is on the content of law, which should not differentiate between individuals on arbitrary grounds. The Explanations on the Charter provide that the first paragraph draws on Article 19 TFEU, Article 14 ECHRFootnote ¹⁴⁶ and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. The Explanations further clarify that whereas Article 19 TFEU acts as a legal basis for the Union to adopt legislative acts to combat certain forms of discrimination, Article 21 EUCFR ‘does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas’.Footnote ¹⁴⁷ Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law’. Many of the grounds included in Article 21 EUCFR are also to be found in EU secondary legislation which has been adopted with a view to give effect to the principle of non-discrimination as protected in the Charter. In contrast to the provision in Article 20 EUCFR which acts as a lex generalis, Article 21 EUCFR can thus be considered with some caution as akin to lex specialis in the field of EU discrimination.Footnote ¹⁴⁸

The EU equality requirement, together with the prohibition of discrimination – in Bruun’s words–Footnote ¹⁴⁹ seems to contain four separate norms imposing negative and positive obligations on the Member States’.Footnote ¹⁵⁰

Specifically, that Member States shall:

1. (1) guarantee equality before the law;

2. (2) guarantee the equal protection of the law;

3. (3) prohibit any discrimination; and,

4. (4) guarantee to all persons equal and effective protection against discrimination, including positive action

Nevertheless, the underlying question in relation to Articles 20 and 21 EUCFR remains unaddressed, namely, who is a legal person. Both notions of equality contained in these articles are intended to represent a universal moral truth and are based on the presumption that legal personhood corresponds to the status of being human and, therefore, extends to all persons indistinctly. This is also why equality in broad terms has a long pedigree in Western legal thought. However, while human rights instruments prohibit de jure breaches of human rights and discrimination, the application of law may facilitate de facto violations and abuses thereby invalidating this universal construction of legal personhood and equality.

Moreover, the EU constitutional and legal framework has some important limitations. A closer look at the Charter shows that, in spite of acquiring the same legally binding status as the EU treaties, it has not had the desired impact in relation to the qualification and place given to social rights as only individual social rights are fully justiciable.Footnote ¹⁵¹ Moreover, while the EU Charter accords rights to individuals, the application of the standing rules under Article 263(4) TFEU makes it very difficult for a person who claims that his rights have been infringed by EU law to be able to meet the requirements of individual concern. ^{Footnote 152} Linked to this, there is the additional limitation concerning the EUCFR’s application to Member States, ie only when they are ‘implementing’ Union law,Footnote ¹⁵³ the meaning and scope of which is yet to be fully understood.Footnote ¹⁵⁴

Hence, international and European/EU human rights instruments offer limited assistance in relation to the content of legal personhood and how human rights relate to humanity,Footnote ¹⁵⁵ thereby hindering a coherent approach in human rights practice. The analysis carried out in this section shows that the centrality of the concept of legal personhood rather than offering sustenance to human rights claims can in fact contribute to hierarchies and stratifications of personhood and, in particular, subjects some humans to the assignment of a lesser or quasi-personhood.Footnote ¹⁵⁶ However, through their dynamic and purposive interpretative approach European courts can play a key protective role in relation to substantive rights, particularly, but not only, in relation to socio-economic rights entitlement of all persons, thereby helping to dismantle contemporary legal stratifications of personhood.

A. Introduction

With immigration and asylum becoming areas of shared competence pursuant to the changes made by the 2000 Treaty of Amsterdam,Footnote ¹⁵⁷ the CJEU has increasingly adopted a dignity-conformed interpretation of EU rules in relation to the movement of TCNs, most significantly in relation to the treatment of irregular migrants and asylum claimants. As posited by Bačić Selanec and Petrić,Footnote ¹⁵⁸ the Court has been constructing ‘the rules of EU asylum and irregular migration law against what it perceives as their underlying telos – the protection of human dignity’. Grounding the interpretation of EU rules in human dignity enables the Court to give the latter practical expression and ‘breathe life’ into its otherwise abstract connotation as well as to step in where the legislator has failed as regards compliance with certain fundamental rights, which de facto are a concretisation of human dignity.Footnote ¹⁵⁹ In the ensuing analysis, the focus is on the role played by human dignity in ensuring adequate protection of fundamental rights for two categories of particularly vulnerable TCNs, namely, irregular migrants and asylum claimants. In particular, the analysis will look at human dignity in selected cases of the Court concerning the treatment of irregular migrants in the context of repatriation policies and concomitant national implementation of the RD.Footnote ¹⁶⁰ This will be followed by an examination of the Court’s case law on the national provision of material reception conditions for asylum claimants under the EU RCD and the key role played by human dignity therein.Footnote ¹⁶¹

B. Personhood under EU immigration law: the Return Directive and the treatment of irregular migrants

The RDFootnote ¹⁶² sets out common standards on return procedures with the aim of harmonising national return procedures, in line with the Schengen acquis. It has wide territorial scope applying to all Member States, with the exception of Ireland, as well as associated Schengen countries. It applies to TCNs staying illegally on the territory of a Member State.Footnote ¹⁶³ Under the RD, ‘illegal stay’ ‘means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State’.Footnote ¹⁶⁴

The RD has been one of the most criticised and litigated EU instruments of migration management.Footnote ¹⁶⁵ It has been defined as the ‘Shameful Directive’ for diluting human rights and procedural guarantees for TCNs.Footnote ¹⁶⁶ This is in spite of the fact that the Directive makes reference to fundamental rights and human dignity throughout. In the Preamble, repatriation policy is defined as one ‘based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity’.Footnote ¹⁶⁷ This extends to TCNs in detention who must be treated in a ‘humane and dignified manner’,Footnote ¹⁶⁸ ensuring that detention should, as a rule, take place in specialised detention facilities.Footnote ¹⁶⁹ Relatedly, it is stated that the use (as a last resort) of coercive measures for the purpose of removal must be carried out ‘in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned’.Footnote ¹⁷⁰

Over the years the CJEU, together with domestic courts, has been building the protective dimension of the Directive. The judicial dialogue between these courts has been central in ensuring the effective implementation of the Directive, particularly in safeguarding the protection of irregular migrants’ fundamental rights.Footnote ¹⁷¹ This has been achieved by ‘limiting the criminalisation of irregular migration, prioritising voluntary departure over pre-removal detention, and providing more judicial control over administrative detention and other coercive measures of immigration law enforcement’.Footnote ¹⁷²

Worryingly, there has been an increasing trend among Member States to extend the notion of illegality to asylum procedures with the practice of considering unsuccessful asylum applications at first instance as falling within the scope of the RD.Footnote ¹⁷³ This has led to the concomitant running of return and appeal asylum procedures.Footnote ¹⁷⁴ The Court has been somewhat incoherent in this respect and seems to have engendered a certain level of confusion in national authorities.Footnote ¹⁷⁵ This situation, combined with the criminalisation of irregular migration, (also coined ‘crimmigration’)Footnote ¹⁷⁶ has significantly weakened the position and effective protection of TCNs’ fundamental rights. In response to this trend, the Court ‘has placed strict limitations on the Member States’ power to enforce criminal sanctions to irregular migrants by differentiating treatment and imposing numerous conditions’.Footnote ¹⁷⁷ Crucially, with El Dridi Footnote ¹⁷⁸ the Court has circumscribed Member States’ powers to criminalise irregular migrants. The case concerned Mr El Dridi, an Algerian national, who had entered Italy irregularly and had failed to obtain a valid residence permit. In 2004 a deportation decree was issued against him, on the basis of which a subsequent deportation order was issued against him in 2010. Mr El Dridi was sentenced to one year’s imprisonment for failing to comply with the order. It became apparent to the Court that Italy had failed to transpose the RD into national lawFootnote ¹⁷⁹ and, relatedly, that even though the Italian authorities had issued a return decision, the removal procedure provided for by the Italian legislation at issue in the main proceedings was not in line with that established by that Directive.Footnote ¹⁸⁰ Besides issues of proportionality and effectiveness of EU law that the imprisonment of one year raised,Footnote ¹⁸¹ the Court found that the establishment of a proper removal and repatriation policy, as provided in the RD, was one based on common standards for persons to be returned in a humane manner and with full respect for their fundamental rights and […] their dignity.Footnote ¹⁸² As Bačić Selanec and Petrić point out, given that ‘protection of human dignity is one of the goals of return procedures, […] the Court’s reliance on the argument related to the effectiveness of those procedures implies respect for the human dignity of individuals subject to those procedures. […] An “effective removal policy” can thus only be an “effective dignity-conforming removal policy”’.Footnote ¹⁸³ The consequence of interpreting the RD provisions in line with human dignity, therefore, led the Court to conclude that there should be no application of national laws that fail to ensure adequate and dignified standards in the treatment of TCNs during return procedures.Footnote ¹⁸⁴ In broader terms, the El Dridi judgement was a reminder for Member States to ensure that return procedures should be carried out in compliance with fundamental rights. In this regard, El Dridi made it clear that although Member States had the power to impose national criminal law provisions to irregular migrants, they had to so in line with their obligations under EU law.Footnote ¹⁸⁵ This reasoning was later confirmed in Achughbabian Footnote ¹⁸⁶ where the Court once again held that ‘the criminalisation of irregular stay cannot be an aim in itself, but is ultimately linked to the objective of the return of the third-country nationals affected’.Footnote ¹⁸⁷ In another line of cases concerning the detention of irregular TCNs pending removal, the Court has held that in order to respect their human dignity they cannot be detained in ordinary facilities with ordinary prisoners, that is even when they consent to that.Footnote ¹⁸⁸

Another case which illustrates the dignity confirming and human rights-based interpretative approach of the Court is Abdida.Footnote ¹⁸⁹ The judgement handed down in this case concerned the identification of appropriate judicial remedies for an illegally staying TCN and the right to remain in the host Member State on grounds of medical treatment. Significantly, the Court held that the provisions of the Directive are to be interpreted with full respect for the fundamental rights and dignity of the persons concerned.Footnote ¹⁹⁰ This hermeneutic approach entailed that a TCN must be able to challenge a return order with suspensive effect and that pending the appeal they should also be entitled to social assistance to cover their basic needs. The decision is important in many respects. First, the Court reached this conclusion even though the wording of the Directive does not require that the remedy should necessarily have suspensive effect.Footnote ¹⁹¹ It did so by saying that such a remedy must be determined in a manner consistent with Article 47 EUCFR, which constitutes a reaffirmation of the principle of effective judicial protection.Footnote ¹⁹² Paragraph 1 of this Article provides that: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’.

Second, in recalling Article 19(2) EUCFR, the Court pointed out that the principle of non-refoulement enshrined in that provision must be understood in a manner consistent with the case law of the ECtHR.Footnote ¹⁹³ Linking this to the facts of the case at hand, it meant that a return order forcing a TCN suffering from a serious physical or mental illness to be sent back to a country where the facilities for the treatment of the illness are inferior to those available in that state may raise an issue under Article 3 ECHR in very exceptional cases, where the humanitarian grounds against removal are compelling.Footnote ¹⁹⁴ It followed that the enforcement of a return decision entailing the removal of a TCN suffering from a serious illness to a country in which appropriate treatment is not available may constitute, in certain cases, an infringement of Article 5 RD read together with Article 19(2) EUCFR.Footnote ¹⁹⁵ The Court thus held that Articles 5 and 13 RD, taken in conjunction with Articles 19(2) and 47 EUCFR, must be interpreted as precluding national legislation which does not make provision for a remedy with suspensive effect in respect of a return decision whose enforcement may expose a TCN to a serious risk of grave and irreversible deterioration in his state of health.Footnote ¹⁹⁶ It is worthy of mention that the Court, in clarifying the relationship between non-refoulement and the removal of a seriously ill TCN to a country in which appropriate treatment is unavailable, went further that the ECtHR thanks to the combined reading of the provisions of the RD and the EUCFR.Footnote ¹⁹⁷ As a result, in Paposhvili the ECtHR has aligned its case law with that of the CJEU.Footnote ¹⁹⁸

The above jurisprudence shows that the role of the Court remains pivotal in ensuring a system of checks and balances of state power as well as the respect for fundamental rights of irregular TCNs, particularly when considering that the legislative Institutions of the EU remain seemingly anchored to a migration management and securitisation logic, thus maintaining the divide between immigration and fundamental rights. According to Moraru, while the CJEU has developed a code of conduct on administrative hearings in immigration status determination proceedings based on Article 47 EUCFR and general principles of EU law, ‘the transformative effect of the Court’s jurisprudence has had more impact on domestic judicial review than on EU legislation’.Footnote ¹⁹⁹ This point seems to be buttressed by the proposed measures to relaunch CEAS. The 2018 Recast Return Directive proposal presents a new mandatory return border procedure and links return policies to asylum by requiring the issuing of a common administrative decision for both the rejection of an asylum claim and return decision.Footnote ²⁰⁰ Given the absence of an accompanying Commission impact assessment, the European Parliament has conducted a targeted substitute impact assessment, which concluded, among others, that there is no clear evidence that the Commission proposal would lead to more effective returns of irregular migrants.Footnote ²⁰¹ This impact assessment also found several protection gaps and shortcomings regarding various aspects of the RD, which could lead to fundamental rights violations for irregular migrants. In spite of these findings, the 2020 EU Pact on Migration and Asylum – with which the EU asylum system has been relaunched and where return procedures feature prominently – increases procedural harmonisation to the detriment of procedural safeguards and strengthens the nexus between asylum and return policies, thereby weakening the position of asylum claimants.Footnote ²⁰²

The above CJEU jurisprudence evidences that human dignity plays an important role in ensuring adequate protection of TCNs’ fundamental rights in EU immigration law, thus providing the basis for reducing discriminatory measures against TCNs and approximating the treatment of foreign nationals to that of Union nationals: by carefully exercising a certain degree of judicial diplomacy the Court has been able to reconcile various conflicting interests, principles and policiesFootnote ²⁰³ and to gradually inject a human dignity approach into the interpretation of the RD provisions, thereby fostering a more protective function of the Directive, which is more in line with International human rights law.

C. Personhood under EU asylum law: the case of material reception conditions in Europe

Adequate reception conditions are a conduit for a fair and efficient asylum procedure and constitute an essential part of any asylum system.Footnote ²⁰⁴ However, many Member States have increasingly relied on various forms of collective accommodation in large reception facilities, such as hotspots, transit facilities, and controlled processing centres.Footnote ²⁰⁵ These reception centres are a confirmation of how CEAS has increasingly become driven by emergency solutions rather than by considered legal responses. The use of these collective forms of accommodation and, specifically, the way asylum claimants are received and treated in these camps with problems of overcrowding and very poor living standards, illustrates the concurrence of reception and deterrence measures and is a manifestation of the exclusion or ‘othering’ of asylum claimants,Footnote ²⁰⁶ which can be further encapsulated in the notion of semi-personhood. Through a process which Kreichauf terms as ‘campisation’,Footnote ²⁰⁷ collective reception centres have become an instrument for biopolitical control in order to decrease migratory flows and confine unwanted subjects.Footnote ²⁰⁸ Enforced collective seclusion from the society of the recipient country combined with bureaucratic procedures associated with material reception conditions lead to a stratification of personhood and actualise processes of ‘othering’.Footnote ²⁰⁹ The inadequacy of these collective reception centres does not allow Member States to assess special reception and procedural needs for the most vulnerable and when proper examination is actually carried out, the identification of vulnerability is often done in a very superficial manner and may only lead to identifying self-evident cases.Footnote ²¹⁰

At EU level, the initial aim to ensure more coherence with higher standards of reception conditions has been seriously watered down.Footnote ²¹¹ Under the proposed Recast Reception Conditions Directive (RCD) Member States retain a wide margin of discretion. This is partly explained by problems of competence as reception conditions are closely related to the welfare systems of the Member States, which are still a national domain.Footnote ²¹² With regard to material reception conditions, while Member States must ensure that they guarantee adequate standards of living for applicants,Footnote ²¹³ Article 17(5) Recast foresees ‘less favourable treatment to asylum applicants compared to nationals […], where it is duly justified’. In practice this provision allows Member States to grant unacceptably low levels of material reception conditions as the extent to which treatment may be less favourable compared to nationals is not qualified and could well be below what is an adequate standard of living as required under Article 17(1) Recast. Under Article 20(1) Recast Member States also have a wide margin of discretion in relation to the withdrawal material reception conditions. While Article 20(5) RCD and Article 19(3) Recast both refer to ‘ensuring dignified standard of living for all applicants’, they leave the decision as to what amounts to ‘dignified standard of living’ entirely to the Member States.

The withdrawal or reduction of reception conditions below an adequate standard of living is not consistent with the requirements of human rights law.Footnote ²¹⁴ Article 4 EUCFR is the EU equivalent of Article 3 ECHR and the line of reasoning of the ECtHR in relation to Article 3 ECHR can also be applied to Article 4 EUCFR. ^{Footnote 215} Accordingly, if Member States provide material reception conditions that are insufficient, thus exposing the applicant to a real risk of poverty, it could potentially raise an issue under Article 4 EUCFR. Member States should be allowed to withdraw reception conditions only where it is shown that the asylum claimant concerned has sufficient means of support to guarantee dignified standard of living.Footnote ²¹⁶

Given this embedded ambivalence in the Recast RCD, the role of the CJEU is pivotal in ensuring adequate standards of material reception conditions, as illustratd by Saciri.Footnote ²¹⁷ The case concerned minimum standards for ensuring the right to family housing for destitute asylum claimants as the family was denied both public asylum seeker accommodation and a financial allowance to rent in the private market. The Court held that the RCD’s purpose and general scheme, together with the observance of fundamental rights, is to prevent an asylum claimant from being deprived of the protection of the minimum standards provided in the Directive. Material reception conditions, therefore, must be available to the asylum claimant from the day he makes the application for asylum, as provided also by Article 17(1) RCD.Footnote ²¹⁸ Significantly, the Court confirmed its judgement in Cimade and Gisti Footnote ²¹⁹ where it held that the right to human dignity must be respected and protected at all timesFootnote ²²⁰ and that Member States must guarantee minimum reception conditions to asylum claimants, even to those in respect of whom it decides to call upon another Member State as responsible for examining their application for asylum to take charge of or to take back those applicants.

Specifically, in Saciri the Court held that financial allowances must be sufficient to ensure a dignified standard of living by enabling them to obtain housing, if necessary, even on the private rental market and preserve family unity.Footnote ²²¹ The Court held that saturation of the reception networks cannot be used as a justification for not meeting the minimum standards set out in the RCD.Footnote ²²² In practice, Member States have an obligation to guarantee housing even in circumstances where asylum seeker accommodation is full.Footnote ²²³ This part of the judgement is particularly important considering the persistent problems of overcrowding and insufficient accommodation in many Member States.

In another case about material reception conditions, Haqbin,Footnote ²²⁴ the Court held that the RCD prohibits Member States from withdrawing material reception conditions in the event of a breach of the rules of accommodation centres, or in the context of violent behaviour within those centres, as this would be a disproportionate sanctionFootnote ²²⁵ and violate the human dignity of the asylum claimant, as laid down in Article 1 EUCFR. Respect for human dignity requires that asylum claimants should not find themselves in a situation of extreme material poverty which would prevent them from meeting their most basic needs such as living, eating, clothing and personal hygiene, which would harm his or her physical or mental health, or put them in a state of degradation incompatible with human dignity.Footnote ²²⁶ It follows that any sanction imposed under Article 20(4) RCD resulting in the complete withdrawal of material reception conditions, even temporarily, would be inconsistent with the requirement of ensuring a dignified standard of living under Article 20(5) RCD.Footnote ²²⁷ Moreover, where the applicant is an unaccompanied minor, Member States must take into account the minor’s specific situation, the proportionality of the sanction imposed and, as a primary consideration, the best interests of the minor.Footnote ²²⁸ Significantly, Haqbin is one in a line of cases of the CJEU that emphasise that the basic needs of applicants for asylum or other forms of international protection must be met throughout the entirety of the application process.Footnote ²²⁹

The jurisprudence of the CJEU examined in this section shows that applying an equal human dignity frame to EU immigration and asylum law meets a twofold objective: in a narrow sense, and specifically in relation to revisiting the notion of legal personhood, it allows to overcome the citizenship hurdle (ie membership to a given community) by surpassing the constructed distinction between a biological status and a socio-political status of the person which underlies the law; in a broader sense, it provides an overarching operational standard for the EU and, in particular, it fosters an aretaic turn by helping to remove the debasement and dehumanisation that has increasingly come to characterise EU immigration and asylum law.